CIVIL PROCEDURE AND CIVIL LAW GLOSSARY

Transcription

1 CIVIL PROCEDURE AND CIVIL LAW GLOSSARY Word/expression abduction access to justice acknowledgement of service acknowledgment of receipt acquiesce acta iure imperii ad litem admissibility admission of debt ADR affidavit ancillary annulment appeal appellate court applicable law applicant arbitration attestation authentic instrument award award an amount bankruptcy binding bond Brussels I illegal carrying or enticing away of a person; usually applied to children removed from a country without permission from one of their parents. one of three priorities set out by the EU to enable individuals and companies to exercise their rights in an EU country other than their own. Other priorities are mutual recognition of judicial decisions and increased convergence in procedural law document a person returns to the court when they have received a notification recognition by an addressee that a letter or notification has been received to give one s consent to something acts and omissions in the exercise of State authority for a suit, for specific proceedings (e.g. representative ad litem ) criterion whereby evidence may be considered by a judge in deciding the merits of a case recognition by a party that an amount of money is owed Alternative Dispute Resolution: extra-judicial procedures used for resolving civil or commercial disputes written, sworn statement of evidence supplementary, additional (e.g. ancillary measures court declaration that something is void from the very beginning (e.g. marriage annulment ) the transfer of a case from a lower to a higher court for a new hearing, request for a new hearing. court where appeals are heard national law that governs a given question of law in an international context anybody filing an application Legal technique for out-of-court dispute resolution whereby the parties refer the issue to a person or persons known as the arbitrator, arbiter or arbitral tribunal, whose decision is binding act of certifying in an official capacity document recording a legal act or fact whose authenticity is certified by a public authority. Certain authentic instruments are enforceable decision by a court, an arbitrator or an arbitration tribunal to decide (e.g. a court) that an amount must be paid legal proceedings and decision whereby which a person or firm is held unable to pay debts obligatory (e.g. binding instrument, binding legislation ) obligation made binding by a money forfeit; the amount of the money guarantee Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 1

2 Brussels IIa case law cause of action choice of court agreement civil partnership claimant composition conflict of jurisdiction conflict of laws contact contact order contest copyright copyright infringement counterclaim court cost/fees creditor crossexamination cross-border case curator Council Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. The Regulation lays down rules governing international jurisdiction and the recognition and enforcement of judgments in cases concerning divorce, separation and annulment of marriage and judgments concerning parental responsibility. rules of law flowing from a set of convergent decisions of the courts. The case-law of the Court of Justice of the European Unions is particularly rich in decisions on the interpretation of the Union treaties, directives and regulations. It is a source of Union law. legal grounds and alleged facts enabling someone to start legal proceedings against someone also called forum selection agreement, it is an agreement whereby parties to a contract agree which court should decide in case of conflict arising from such contract in some states, same-sex marriage person initiating a law suit; in some jurisdictions it is called plaintiff agreement or compromise by which a creditor or group of creditors accepts partial payment from a debtor See "international jurisdiction". See "applicable law visitation by a parent who does not have residence. court order setting out when the parent without residence will see a child challenge, to oppose something (e.g. contest a claim ) rights given to creators for their literary and artistic work unauthorized use of material covered by copyright law qlaim brought by a defendant in response to the claimant s claim; it is usually included in the same proceedings fees for expenses which must be paid by the parties to a suit, or in some cases, by the losing party someone to whom money is owed questioning of a witness by a party other than the party who called the witness one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised. in some countries (e.g. Scotland), the guardian of a child 2

3 custody now referred to as residence in some countries, arrangement establishing who lives with the children and provides daily care. It may also be joint or shared, if the children live part of the time with one parent and part of the time with the other parent. damages debtor decision declaration decline deed of separation default defence defendant desertion dispense disposal dissolution divorce domicile effect emancipation enforcement eu acquis european order for payment evidence evidence in chief exemption Sum of money awarded by a court as compensation to a claimant The party owing a debt to another party. EU measures relating to insolvency proceedings having cross-border effects make it more difficult for a debtor to escape obligations. In EU law, a decision is a legislative instrument that is binding in its entirety on all those to whom it is addressed type of court judgment which states that something is the case (e.g. declaration of enforceability) refuse (e.g. decline jurisdiction) A contract, usually drawn up by a solicitor, which records an agreement reached in respect of financial matters following separation. Failure in duty or performance (e.g. default of appearance, person in default, etc.) factual denial or assertion of facts or law that counters or negates a claim made by the other part in proceedings (e.g. defence of res judicata ) person against whom civil proceedings are initiated intentional abandonment of a spouse to allow someone not to do something which the law or a regulation usually requires (e.g. dispense with the production of a document ) act of selling or transferring goods (e.g. disposal or property ) legal process which ends a contract of marriage or civil partnership legal process which ends a of marriage A here a person actually lives to carry out (e.g. effect service ) legal state by which a child acquires the rights of an adult before he or she is 18 (or otherwise legally of age) execution of a law or a court decision also known as "acquis communautaire", the entire body of legislation of the EU, of which a significant body relates to justice, which must be accepted by countries before they can join the EU procedure that may help someone to obtain quickly the repayment of the sums owed by a debtor something legally submitted to a tribunal to ascertain the truth of a matter evidence given by a witness for the party who called him/her release from an obligation, a duty, or a liability to which others are subject 3

4 exequatur expeditiously fall due force majeure forum forum selection agreement forum-shopping foster family freezing order guardian hearing indemnity infringe injunction insolvency international jurisdiction procedure by which a party requires of a national tribunal to confer the execution on a foreign legal decision in an accelerated manner reach the date for payment causes that are outside the control of the parties The forum is a specific concept of private international law. It means the courts of a given country in which an action is brought. The concept of forum underlies the concepts of lex fori and forum-shopping See choice of court agreement practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favuorable judgment. family with whom a child lives because, for some reason, the child cannot live with his or her family layman s term for an Injunction Order to stop a party from disposing of money or assets pending a final decision being made by the Court about distribution of that money or assets person responsible for making major decisions about such things as what kind of education, health care or religious training the children will receive, and how to manage anything the children may own, such as property or money. Like custody, guardianship can be handled by one parent only, or shared between the parents - which means that both parents will remain involved in making important decisions about the children's future. session in which testimony is taken from witnesses or oral arguments are heard from parties right to recover from a third party the whole amount someone is liable to pay encroach upon in a way that violates law or the rights of another (e.g. infringes somebody s parental responsibility ) order of a court preventing someone from doing something eg. disposing of assets, being violent or threatening or ordering someone to do something situation where someone has insufficient assets to meet debts and liabilities international jurisdiction refers to the fact that the courts of a given country will be the most appropriate to hear and determine a case that has an international dimension. A dispute has an international dimension where, for example, the parties have different nationalities or are not resident in the same country. In such a situation the courts of several countries might have jurisdiction in the case, and we have what is known as a conflict of jurisdiction. The rules of international jurisdiction lay down criteria for determining the country whose courts will have jurisdiction in the case. irreconciliable something for which a solution is not possible (e.g. irreconciliable differences ) or which cannot be made compatible (e.g. irreconciliable judgments ) 4

5 issue joint joint liability judgment judicial separation legal aid legal person legalisation lex causae lex fori lex loci delicti limitation period liquidated debt lis pendens lis alibi pendens litigation lodge lump sum provision maintenance mandatory to make, to publish (e.g. issue an order, issue a judgment ). shared with other people, belonging to or made by more than one person (e.g. joint ownership, joint application ) Situation where two parties share a single liability, but each party can be held liable for the whole of such liability decision by a court legal process whereby you remain man and wife, but separated, the advantage of this being that you can apply to the Court for Orders about financial matters to be decided if you cannot agree type of funding which may be available to a person if he or she isin receipt of benefits, or on a really low income. It is now called public funding. It can help with the cost of a divorce, children proceedings, or issues relating to money and property. group of natural persons which is allowed by the law to create a legal entity in order to act as a single individual for certain purposes, or also a single person having a separate legal personality other than his own authentication (e.g. of a document) so that it is acceptable by a court law governing the substance of the case, designated by the rules of conflict of laws. See applicable law law of the court in which the action is brought. Where an action is brought in a court and has an international dimension, the court must consider the law applicable to the case. In certain circumstances, the lex fori will apply. Traditionally the lex fori governs questions of procedure, regardless of the lex causae. law of the country where, in terms of non-contractual obligations, the harmful event occurred. period within which a person must start court proceedings if he/she wants to enforce a right against other person in bankruptcy cases, situation where the existence and amount of debt is not disputed suit pending. It may refer to any proceedings which have not been settled by a court suit which has not been decided in a different jurisdiction or before a different court conduct of a lawsuit to submit (e.g. lodge an application, lodge a complaint ) A capital payment from one party to the other. mutual assistance on the basis of family solidarity: parents must feed, educate and maintain their children. In some EU countries children must assist their parents in case of need. A divorced spouse is obliged to pay maintenance to a former spouse who has custody of their children. This obligation is generally discharged by a monthly payment known as maintenance. obligatory 5

6 matrimonial member state of enforcement member state of origin merits non-contractual obligations nullity occupation order oppose a claim outstanding parental responsibility parenthood party pecuniary periodical payments petitioner placement premises pre-nuptial agreement principal private international law proof of service public international law public policy pursue a claim related to matrimony or a married couple (e.g. matrimonial home, matrimonial property, etc. Member State in which enforcement is sought Member State in which a decision, an instrument or an order is issued substantive elements of a claim where a person who is responsible for loss sustained by another person is required to compensate the victim, in cases not linked to the performance of a contract, such as traffic accidents, environmental damage or defamation. court proceedings to void a contract of marriage order of a Court granting you the right to occupy a property to the exclusion of one s husband or wife. to contest a claim still in existence; not settled or resolved (e.g. outstanding debt ) the rights, duties and obligations that a parent has towards their child and their child's property. quality of being somebody s father or mother (e.g. establishment of parenthood) person or group involved in a contract or proceedings as a litigant. related to money (e.g. pecuniary damages, non-pecuniary loss ) regular maintenance payments from one party to the other. in some countries, the person who issues divorce proceedings. arrangement whereby a child is put under the care of a family other than the child s parents, so that the child s needs and protection are ensured land and buildings considered as a property contract entered into in contemplation of marriage, usually to regulate division of money and assets in the event of later separation or divorce. capital sum earning interest, due as a debt in its broad sense, means the set of legal rules governing international relations between private individuals. evidence that proves that a document has been served to its addressee; it may be a certificate, an acknowledgement of receipt, etc. set of legal rules governing international relations between public bodies such as States and international organisations. Conventions and uniform laws are common instruments of public international law. courses of action, regulatory measures, laws and priorities concerning a given topic promulgated by a governmental entity or its representatives to file a claim, start legal proceedings 6

7 recognition rectify regulation removal residence respondent retention review right of appeal Rome I Rome Ii security seise self-employed separation service several liability shared custody (residence in some countries) small claims spouse statutory stay submission submit recognising a judgment given in one EU country in another means agreeing that it may have effect there to set right what is wrong, ro remedy a defect (e.g. rectify a certificate, rectify an application ) instrument of general scope that is binding in its entirety and directly applicable in all EU countries moving a person or thing from one place to another (e.g. wrongful removal ) place (usuallly country) where a person habitually lives person who responds to proceedings issued at Court action of keeping something in one's own hands or under one's own control; continued possession of something judicial re-examination of a decision, in order to correct possible errors right to challenge a decision by a court or tribunal Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to noncontractual obligations property deposited or pledged by or on behalf of a person as a guarantee of the payment of a debt, and liable to forfeit in the event of default place a case before a court so that it can hear the case (usually in the passive, e.g. the court is seised ) person who works for him/herself instead of for an employer, and who operate their own trade or business condition of a husband and wife who remain married but who live apart, whether by mutual agreement or by decree of a court formal delivery of a document or a notification (e.g. postal service ) situation where parties are liable for only their respective obligations. arrangement approved by a court whereby a child is to live with both parents after a separation or divorce, usually in blocks of time (e.g. Monday to Thursday, Friday to Sunday, or alternate weeks). cases concerning sums under EUR 2000, excluding interest, expenses and disbursements (at the time when the claim form is received by the competent court) husband or wife governed by a written law, e.g. statutory interest judicial order forbidding or postponing some action until some particular event occurs, or until the court lifts such order (e.g. stay of enforcement, stay of proceedings ) allegation made by one of the parties (e.g. make submissions to the court) file, lodge (e.g. submit an application ) 7

8 substance succession summons suspension tortious or delictual obligations transcript true copy uncontested claim undertaking unequivocal unfounded claim will winding-up writ of summons merits of a case act or process of a person's becoming beneficially entitled to a property or property interest of a deceased person notice calling somebody to appear in court temporary stop of proceedings See non-contractual obligations certified copy of the proceedings that occurred in a court, especially if they were made orally certified copy claim which has not been opposed by the other party promise to the court to do, or not to do something clear, leaving no doubt for doubt or dispute (e.g. in an unequivocal manner ) claim for which there is no justification legal document which allows people to leave their assets to beneficiaries of their choice. process of dissolving a corporate body by collecting all assets and outstanding income, satisfying all the creditors claims, and distributing whatever remains (the net assets). document issued by a court that orders a person to answer a legal complaint within a specified time 8